Antonysami vs Arulanandam Pillai and another

Thanikkachalam, J.—This revision is directed against the order passed in C.M.A. No. 26 of 1982, which is turn arose out of the order

passed in E.P. No. 346 of 1981 in O.S. No. 35 of 1965. The petitioner herein is the legal representative of the plaintiff, who filed the suit O.S.

No. 35 of 1965 for specific performance of the contract of sale. The suit was decreed in favour of the plaintiff. The plaintiff filed E.P. No. 346 of

1986 to execute the decree. In the decree, it is stated that the defendant do measure and demarcate the boundaries for 13 grounds and 491 sq. ft.

in the property described hereunder on or before 23.9.1966. that the plaintiff do deposit into court on or before 23.9.1966 the balance of the sale

price for 13 grounds and 491 sq. ft. on measurement and demarcation and on such measurement and demarcation and fixation of the price and on

deposit, the defendant do execute the sale deed in respect of the suit site in favour of the plaintiff at her cost as alleged and in default the court do

execute the sale deed on application of the plaintiff and the cost of such execution of the sale deed be recovered from the defendant."" The plaintiff

filed the present execution petition to execute the decree under O. 21, R. 34, C.P.C. According to the defendant/judgement debtor the execution

petition was filed after 12 years beyond the time stipulated in the decree and therefore the execution petition is liable to be dismissed. But

according to the plaintiff/decree-holder the land in question was not measured and demarcated the boundaries on or before 23.9.1966. It was

actually demarcated in the year 1973. Therefore, if the time is calculated from the date of compliance of the decree in the year 1973 then the

execution petition is in time. This contention of the decree-holder was accepted by the execution court. Accordingly, order was passed in the

execution petition. Aggrieved, the judgment-debtor preferred an appeal. The appellate court come to the conclusion that the execution petition was

filed beyond 12 years from 23.9.1966. Hence, the execution petition is barred by limitation. In that view of the matter, the appellate Court

reversed the order passed by the execution court and dismissed the execution petition. It is against this order, the present revision petition has been

preferred by the decree-holder. Learned Counsel for the decree-holder petitioner herein submitted as under:-The judgment-debtors were given

time to measure and demarcate the land on or before 23.9.1966. This was not done by the judgment-debtors. According to the decree-holders,

the judgment debtor went to a foreign country and his brother was asked to demarcate and measure the land, and accordingly, the brother of the

judgment-debtor measured and demarcated the land in the year 1973. After the lands were measured and demarcated in the year 1973 the

present execution petition was failed on 19.4.1980. Therefore, the execution petition is not barred by limitation. Since the judgment-debtor failed

to measure and demarcate the land as stipulated in the decree on or before 23.9.1966 the time for filing the execution petition should not be

calculated from that time. The decree- holder has already deposited the balance of sale consideration before 23.9.1966. As against the order

passed under O. 21, R. 34, only a revision will lie and the first appeal filed by the judgment debtor is not competent. The order passed under

Order 21 R. 34 accepting or refusing to accept the draft sale deed is amenable to an appeal as per the provisions of O. 43, R. 1(1), C.P.C. But in

the present case the order passed by the executing court does not relate to accepting or refusing to accept the draft sale deed. Therefore, the

provisions contained in O. 43, R. 1(i), C.P.C. will not be applicable to the facts of this case so as to enable the judgment-debtor to file an appeal

before the first appellate court. Hence, according to the decree-holder the first appellate court was not correct in reversing the order passed by the

execution court.

On the other hand, Learned Counsel appearing for the respondent/judgment-debtor submitted as under:-In the decree it is clearly stated that the

judgment-debtor should measure and demarcate the land on or before 23.9.1966 and the plaintiff should deposit into court on or before

23.9.1966 the balance of sale price on such measurement and demarcation. When the demarcation and measurement was not done on or before

23.9.1966, as stipulated in the decree, the decree-holder ought to have filed an execution petition within 12 years from that date. Even if the

demarcation was done in the year 1973 that would not help the decree-holder to calculate the period of 12 years from 1973 onwards. The petition

was filed by the decree-holder under O. 21, R. 34, C.P.C. along with the draft sale deed and that execution petition was allowed and ordered.

Therefore against the order passed on the petition filed under O. 21, R. 34, only an appeal will lie before the first appellate authority as

contemplated under O. 43 R. 1(i), C.P.C. Hence no revision will lie. It is not correct on the part of the decree-holder to state that the impugned

order was not passed under O. 21, R. 34, C.P.C. It was therefore submitted that the execution petition was filed beyond 12 years from the

stipulated date of 23.9.1966. Hence, the execution petition is liable to be dismissed. For all these reasons it was pleaded that since the order

passed by the first appellate court is in order, no interference is called for.

I have heard the rival submissions.

The fact remains that the petitioner herein is the decree-holder and he filed an execution petition to execute the decree obtained in a suit for

specific performance of a contract for sale. According to the decree passed in the suit, O.S. No. 35 of 1965, the defendant should measure and

demarcate the boundaries for 13 grounds and 491 sq. ft. in the property described in the scheduled on or before 23.9.1966 and the plaintiff should

deposit into court on or before 23.9.1966 the balance of safe consideration for 13 grounds and 491 sq. ft. on such measurement and demarcation.

According to the decree-holder he deposited the balance of sale consideration before 23.9.1966, but the judgment- debtor failed to measure and

demarcate the lands on or before 23.9.1960 According to the decree-holder the judgment-debtor measured and demarcated the lands in the year

1973 and thereafter within 12 years from the year 1973, i.e., on 19.4.1985 the decree-holder filed by execution petition.

The Learned Counsel appearing for the decree-holder submitted that E.P. No. 346 of 1981 was filed for executing a decree for specific

performance of the contract. The relevant provision is O. 21, R. 34, of C.P.C. Cl. 1 provides that the decree-holder should file a draft sale deed

along with the execution petition. If the judgment-debtor has any objection to the terms of the draft sale deed, and if the order is passed on the

objections, then the order is appealable under O. 43, R. l(i) of C.P.C. O. 43, R. 1(i) specifically provides an appeal against an order passed with

regard to the terms of the draft sale deed. But in the present case, according to the Learned Counsel for the decree-holder there is no reference to

the draft sale deed in the counter affidavit filed by the respondent and the counter affidavit raises objection only to the main execution petition.

Therefore, according to the decree-holder the order passed by the execution court is not appealable. The decree-holder submitted that the

appellate court has no jurisdiction to entertain this appeal, and the order passed by the appellate court is liable to be set aside under S. 115 of

C.P.C. Therefore, according the decree-holder the order passed by the appellate court is a nullity.

It remains to be seen that the execution petition was filed under O. 21, R. 34, praying to direct the defendant judgment debtor to execute sale

deed as per the draft sale deed produced in the court and in default to cause the execution of the sale deed by the court itself since the entire sale

consideration has already been deposited in Court. O. 34, R. 1 says that where the execution petition is for the execution of a decree or for the

endorsement of a negotiable instrument and the judgment-debtor neglects or refuses to obey the decree, the decree-holder may prepare a draft of

the document or endorsement in accordance with the terms of the decree and deliver the same to the court. According to the provisions contained

in O. 43 R. 1(i), on an order passed on the objection to the draft of a document or of an endorsement, an appeal will lie. In the present case, the

execution petition was filed with a draft sale deed under O. 21, R. 34, C.P.C. The judgment-debtor raised an objection with regard to the draft

sale deed filed by the decree-holder. On such objection order was passed by the execution court. Therefore, only an appeal will lie against the

order passed by the execution court. Further, the point of jurisdiction must be raised in the initial stage. That was not done in this case. Hence, the

contention put forward by the petitioner herein viz., that the appellate court has no jurisdiction to entertain the appeal cannot be accepted.

According to the decree-holder the execution petition is within time. But according to the judgment-debtor the execution petition is barred by

limitation. The judgment-debtor submitted that the period of limitation should run from 23.9.1966 and not from the year 1973. The decree passed

in O.S. No. 35 of 1965 dated 23.7.1966 is as under:

(1) The defendant do measure and demarcate the boundaries for 13 grounds and 491 sq. ft. in the properly described hereunder on or before

23.9.1966.

(2) That the plaintiff do deposit into court on or before 23.9.1966 the balance of the sale price for 13 grounds and 491 sq. ft. on measurement and

demarcation.

(3) That on such measurement and demarcation and fixation of the price and on deposit the defendant do execute the sale deed in respect of the

suit house-sites in favour of the plaintiff at her cost as agreed, and in default, the court do execute the sale deed on application of the plaintiff and

the cost of the execution of such sale deed be recovered from the defendant.

(4) That the defendant do pay to the plaintiff the sum of Rs. 1,423/- being costs of this suit and do bear his own costs of Rs. 507.50.

The plaintiff deposited the balance of sale prices before 23.9.1966. In the present case the demarcation and measurement was not done on or

before 23.9.1966 within the time fixed for measurement and demarcation and when the measurement and demarcation was not done within the

time stipulated in the decree, the decree-holder ought to have applied to the court for execution of the decree and for suitable direction to the

defendant to make demarcation. The decree-holder cannot wait till the judgment-debtor measures and demarcates the land in the year 1973.

Therefore, the period of limitation for filing the execution petition would start from 23.9.1966 and not from the year 1973 when the demarcation

was done.

Learned Counsel appearing for the decree-holder submitted that the decree is not drafted in accordance with the judgment. The counsel for the

decree-holder submitted that in the judgment it is stated that the time limit upto 23.9.1966 is given only for depositing the amount and not for

demarcating the land. Further only after measurement and demarcation of the land and after fixation of price and on deposit the defendant was

directed to execute the sale deed. Therefore, there is no time limit for measurement and demarcation. But, in the decree it is stated that

measurement and demarcation should be done within two months period, i.e., on or before 23.9.1966. Therefore, it was submitted that decree

was not drafted in accordance with the judgment. A plain reading of paragraph 11 of the judgment in O.S. No. 35 of 1965 would go to show that

the measurement and demarcation should be done within two months period, and the balance of sale consideration should also be paid or

deposited within the same two months period. Therefore, it is not correct on the part of the judgment-debtor to state that there is no time limit

prescribed for measurement and demarcation and two months time was given only for depositing the balance of sale price after such measurement

and demarcation was done.

According to the Learned Counsel for the decree-holder the decree was not drafted in accordance with the judgment and therefore this mistake

should be corrected under S. 151 or S. 152 of C.P.C. by this Court. A decree can be corrected only by a court which passed that decree. This

revisional court cannot correct the decree passed in the suit O.S. No. 35 of 1965. Further, the execution court cannot go behind the decree.

Learned Counsel appearing for the judgment-debtor relied upon the following decisions in order to support his contention, that execution of the

decree in the present case is not subject to any condition precedent. (Umayal Achi and another v. Ramanathan Chettiar-1980 IMLJ 24 and

Yeswant Deorao Deshmukh Vs. Walchand Ramchand Kothari, ). On the other hand, Learned Counsel for the decree-holder in order to support

his contention that decree is executable after measurement and demarcation was done by the judgment-debtors relied on the following decisions,

viz. Vidiyanath Aiyar v. Subramania Pattar ( 1954 1 MLJILR 36 Mad 104), Krishnayya and another v. Parvataneni Bhosayya and others (1954 1

MLJ 462), Rameshwar Singh v. Homeswar Singh (A.I.R. 1921 PC 31) and Garimalla Sitaramamurti Vs. Thamma Lakshminarayanamurti and

Others, . I have gone through all these decisions carefully. All these decisions laid down a principle that if the execution of the decree is depending

upon an event to happen, then the decree becomes executable only if such event took place, otherwise the decree is executable from the date of

passing the decree. In the instant case, the trial court directed the judgment-debtor to measure and demarcate the land on or before 23.9.1966. If

the decree-holder failed to measure and demarcate the land on or before 23.9.1966, the decree-holder need not wait till the judgment-debtor

measures and demarcates the land. When the judgment-debtor failed to perform the condition imposed upon him within the particular date, the

decree-holder ought to have filed an execution petition to compel the judgment-debtor to perform his part of the obligation imposed by the Court.

In the present case, where the judgment-debtor failed to perform his part of the obligation on or before 23.9.1966 the limitation to file execution

petition would start from that date. There is no condition in the decree that the judgment-debtor can measure and demarcate the land as and when

she pleases and the decree-holder can approach the execution court after such measurement and demarcation are done. Therefore, execution

petition filed on 19.4.1980 is beyond 12 years period from 28.9.1966 and hence it is liable to be dismissed as time barred. In that view of the

matter, I hold that there is no infirmity in the order passed by the appellate Court in reversing the order passed by the execution court in E.P. No.

346 of 1981 Accordingly, this revision is dismissed. There will be no order as to costs.